II 

112TH CONGRESS 

1ST SESSION S. 918 

To direct the Secretary of Transportation to carry out programs and activities 

to improve highway safety. 

IN THE SENATE OF THE UNITED STATES 

MAY 9, 2011 

Mr. BAUCUS introduced the following bill; which was read twice and referred 

to the Committee on Commerce, Science, and Transportation 

A BILL 

To direct the Secretary of Transportation to carry out 

programs and activities to improve highway safety. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Surface Transpor5 tation Safety Act of 2011’’. 

6 SEC. 2. WORKER INJURY PREVENTION AND FREE FLOW OF 

7 VEHICULAR TRAFFIC. 

8 The Secretary of Transportation shall modify regula9 tions issued pursuant to section 1402 of the Safe, Ac10 countable, Flexible, Efficient Transportation Equity Act: 


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1 A Legacy for Users (23 U.S.C. 401 note; 119 Stat. 1227) 

2 to allow fire services personnel that are subject to the reg3 ulations to wear apparel meeting the high visibility re4 quirements set forth in the Standard on Protective En5 sembles for Structural Fire Fighting and Proximity Fire 

6 Fighting (NFPA 1971–2007) in lieu of apparel meeting 

7 the requirements set forth in ANSI/ISEA 107–2004. 

8 SEC. 3. POSITIVE PROTECTIVE DEVICES. 

9 Not later than 60 days after the date of the enact10 ment of this Act, the Secretary of Transportation shall 

11 modify section 630.1108(a) of title 23, Code of Federal 

12 Regulations, to ensure that— 

13 (1) at a minimum, positive protective measures 

14 are used to separate workers on highway construc15 tion projects from motorized traffic in all work zones 

16 conducted under traffic in areas that offer workers 

17 no means of escape unless an engineering analysis 

18 determines otherwise; 

19 (2) temporary longitudinal traffic barriers are 

20 used to protect workers on highway construction 

21 projects in stationary work zones lasting 2 weeks or 

22 more if the project design speed is 45 miles per hour 

23 or greater and the nature of the work requires work24 ers to be within 1 lane-width from the edge of a live 

25 travel lane, unless— 


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1 (A) an engineering analysis determines 

2 that such conditions do not exist; or 

3 (B)(i) the project is located in a State with 

4 a population density of 20 or fewer persons per 

5 square mile and outside of an urbanized area; 

6 and 

7 (ii) the road’s annual average daily traffic 

8 load is less than 100 vehicles per hour; and 

9 (3) positive protective devices that are nec10 essary for highway construction projects are paid for 

11 on a unit pay basis, unless— 

12 (A) such payment method would create a 

13 conflict with innovative contracting approaches, 

14 such as design-build or some performance-based 

15 contracts for which the contractor is paid to as16 sume a certain risk allocation; and 

17 (B) payment is generally made on a lump 

18 sum basis. 

19 SEC. 4. USE OF PATENTED OR PROPRIETARY ITEMS TO 

20 FURTHER STATE STRATEGIC HIGHWAY SAFE21 TY PLANS. 

22 Section 112 of title 23, United States Code, is 

23 amended by adding at the end the following: 


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1 ‘‘(h) USE OF PATENTED OR PROPRIETARY ITEMS TO

2 FURTHER STATE STRATEGIC HIGHWAY SAFETY

3 PLANS.— 

4 ‘‘(1) IN GENERAL.—The Secretary shall ap5 prove the use of Federal funds made available to 

6 carry out this chapter in the payment of patented or 

7 proprietary items if the State transportation depart8 ment certifies, based on the documented analysis 

9 and professional judgment of qualified State trans10 portation officials, that— 

11 ‘‘(A) the patented or proprietary item will 

12 contribute to the accomplishment of 1 or more 

13 goals set forth in the State’s strategic highway 

14 safety plan; 

15 ‘‘(B) no equally suitable alternative item 

16 exists; 

17 ‘‘(C) any specified patented or proprietary 

18 item will be clearly identified as a patented or 

19 proprietary item in bid documents; and 

20 ‘‘(D) any patented or proprietary item 

21 specified pursuant to this certification will be 

22 available in sufficient quantity to complete any 

23 project identified in bid documents. 

24 ‘‘(2) CLARIFICATION OF AUTHORITY.—The au25 thority to utilize patented or proprietary items proVerDate Mar 15 2010 00:29 May 12, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S918.IS S918

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1 vided in paragraph (1) is in addition to authority to 

2 utilize such products under this section and under 

3 section 635.411 of title 23, Code of Federal Regula4 tions, as in effect on March 2, 2009, which may not 

5 be revised by the Secretary to reduce authority to 

6 utilize patented or proprietary items.’’. 

7 SEC. 5. MINIMUM LEVEL OR RETROREFLECTIVITY FOR 

8 PAVEMENT MARKINGS. 

9 Not later than October 1, 2012, the Secretary of 

10 Transportation shall revise the Manual on Uniform Traf11 fic Control Devices to include a standard for a minimum 

12 level of retroreflectivity that shall be maintained for pave13 ment markings and shall apply to all roads open to public 

14 travel. 

15 SEC. 6. HIGHWAY SAFETY IMPROVEMENT PROGRAM. 

16 (a) HIGHWAY SIGNS AND PAVEMENT MARKINGS.— 

17 Section 148(a)(3)(B)(xi) of title 23, United States Code, 

18 is amended to read as follows: 

19 ‘‘(xi) Installation, replacement, and 

20 upgrade of highway signs and pavement 

21 markings, including any upgrade of mate22 rials and the implementation of any assess23 ment or management method designed to 

24 meet a State-established performance 

25 standard, Federal regulation, or requireVerDate Mar 15 2010 00:29 May 12, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S918.IS S918

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1 ment contained in the Manual on Uniform 

2 Traffic Control Devices relating to min3 imum levels of retroreflectivity.’’. 

4 (b) MAINTAINING MINIMUM LEVELS OF

5 RETROREFLECTIVITY.— 

6 (1) ELIGIBLE PROJECTS.—Section 148 of title 

7 23, United States Code, is amended— 

8 (A) in subsection (a), by adding at the end 

9 the following: 

10 ‘‘(7) PROJECT TO MAINTAIN MINIMUM LEVELS

11 OF RETROREFLECTIVITY.—The term ‘project to 

12 maintain minimum levels of retroreflectivity’ means 

13 a project undertaken pursuant to provisions of the 

14 Manual on Uniform Traffic Control Devices requir15 ing public agencies to use an assessment or manage16 ment method that is designed to maintain highway 

17 sign or pavement marking retroreflectivity at or 

18 above prescribed minimum levels.’’; and 

19 (B) in subsection (d)(1)— 

20 (i) in subparagraph (A), by striking 

21 ‘‘or’’ at the end; 

22 (ii) by redesignating subparagraph 

23 (B) as subparagraph (C); and 

24 (iii) by inserting after subparagraph 

25 (A) the following: 


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1 ‘‘(B) any project to maintain minimum lev2 els of retroreflectivity on any public road, re3 gardless of whether such project is included in 

4 the State strategic highway safety plan; or’’. 

5 (2) FEDERAL SHARE.—Section 120(c)(1) of 

6 title 23, United States Code, is amended by insert7 ing ‘‘maintaining minimum levels of retroreflectivity 

8 of highway signs or pavement markings,’’ after ‘‘sig9 nalization,’’. 

10 SEC. 7. ROADWAY SAFETY IMPROVEMENT PROGRAM FOR 

11 OLDER DRIVERS AND PEDESTRIANS. 

12 (a) IN GENERAL.—The Secretary of Transportation 

13 shall carry out a program to improve traffic signs and 

14 pavement markings in all States (as such term is defined 

15 in section 101 of title 23, United States Code) in a manner 

16 consistent with the recommendations included in the Octo17 ber 2001 publication of the Federal Highway Administra18 tion entitled ‘‘Guidelines and Recommendations to Accom19 modate Older Drivers and Pedestrians (FHWA–RD–01– 

20 103)’’. 

21 (b) APPORTIONMENT OF FUNDS.—On October 1 of 

22 each fiscal year, the Secretary shall apportion sums au23 thorized to be appropriated to carry out this section for 

24 such fiscal year among the several States using the overall 

25 formula share for each State for fiscal year 2009 for all 


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1 funds subject to section 105 of title 23, United States 

2 Code, including equity bonus funds, obtained after appli3 cation of such section 105 for such fiscal year. 

4 (c) FEDERAL SHARE.—The Federal share of the cost 

5 of a project carried out under this section shall be deter6 mined in accordance with section 120 of title 23, United 

7 States Code. 

8 (d) AUTHORIZATION OF APPROPRIATIONS.—There is 

9 authorized to be appropriated out of the Highway Trust 

10 Fund (other than the Mass Transit Account) $90,000,000 

11 to carry out this section for each of the fiscal years 2012 

12 through 2016. 

13 (e) APPLICABILITY OF TITLE 23.—Funds made 

14 available to carry out this section shall be available for 

15 obligation in the same manner as if such funds were ap16 portioned under chapter 1 of title 23, United States Code. 

17 SEC. 8. RAIL-HIGHWAY GRADE CROSSINGS. 

18 (a) TRANSPARENCY OF STATE SURVEY AND SCHED19 ULE OF RAILWAY-HIGHWAY GRADE CROSSINGS.— 

20 (1) IN GENERAL.—Section 130 of title 23, 

21 United States Code, is amended— 

22 (A) in subsection (d), by adding at the end 

23 the following: ‘‘Each State shall make surveys 

24 and schedules compiled under this subsection 


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1 available to the public through the Internet 

2 Web site of the State.’’; 

3 (B) in subsection (e)(1), by striking the 

4 first sentence; and 

5 (C) in subsection (f), by striking ‘‘set 

6 aside’’ each place it appears and inserting 

7 ‘‘made available’’. 

8 (2) EFFECTIVE DATE.—This subsection shall 

9 take effect on the date that is 180 days after the 

10 date of the enactment of this Act. 

11 (b) AUTHORIZATION OF APPROPRIATIONS.—There is 

12 authorized to be appropriated out of the Highway Trust 

13 Fund (other than the Mass Transit Account) to carry out 

14 section 130 of title 23, United States Code, $220,000,000 

15 for each of the fiscal years 2012 through 2016. 

16 SEC. 9. REVIEW OF SAFETY OF RAIL-HIGHWAY GRADE 

17 CROSSINGS. 

18 (a) IN GENERAL.—The Secretary of Transportation 

19 shall conduct a comprehensive review of the safety of all 

20 highway-rail grade crossings in the United States. 

21 (b) METHOD.—In reviewing the safety of a highway22 rail grade crossing under subsection (a), the Secretary 

23 shall— 


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1 (1) assess safety conditions, average daily traf2 fic, proximity to schools, past accidents, fatalities, 

3 and possible safety improvements; and 

4 (2) determine the best methods for making 

5 crossings safer, including closings, grade separa6 tions, installation of protective devices, or other 

7 methods. 

8 (c) PRIORITY LIST.—The Secretary shall use the in9 formation collected under subsection (a) to compile, main10 tain, and submit to Congress a list of the 10 highway11 rail grade crossings in each State that have the greatest 

12 need for safety improvements. 

13 (d) INCLUSION IN RAIL-HIGHWAY GRADE CROSSING

14 DATABASE.—The Secretary shall include the information 

15 collected under subsection (a) and the priority list com16 piled under subsection (c) in the national database on the 

17 safety of highway-rail grade crossings required under sec18 tion 20168(a) of title 49, United States Code, as added 

19 by section 10. 

20 (e) UPDATE.—The Secretary shall update the com21 prehensive review under subsection (a) at least once every 

22 4 years. 

23 (f) AVAILABILITY OF INFORMATION.—The Secretary 

24 shall make priority lists and databases compiled under this 


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1 section available to the public through the Internet Web 

2 site of the Department of Transportation. 

3 (g) LIMITATION ON USE OF DATA IN JUDICIAL PRO4 CEEDINGS.—Notwithstanding any other provision of law, 

5 any report, review, survey, schedule, list, data, informa6 tion, or document of any kind compiled or collected pursu7 ant to this section, including materials for identifying, 

8 evaluating, or planning the safety enhancement of a poten9 tial accident site or railway-highway crossing, shall not 

10 be— 

11 (1) subject to discovery or admitted into evi12 dence in a Federal or State court proceeding; or 

13 (2) considered for other purposes in any action 

14 for damages arising from any occurrence at a loca15 tion mentioned or addressed in such report, review, 

16 survey, schedule, list, or data. 

17 SEC. 10. RAIL-HIGHWAY GRADE CROSSING SAFETY. 

18 (a) HIGHWAY-RAIL GRADE CROSSING SAFETY.— 

19 Subchapter II of chapter 201 of title 49, United States 

20 Code, is amended by adding at the end the following: 

21 ‘‘SEC. 20168. RAIL-HIGHWAY GRADE CROSSING SAFETY IN22 FORMATION. 

23 ‘‘(a) ESTABLISHMENT OF DATABASE.—The Sec24 retary of Transportation shall establish and maintain a 


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1 national database of information on the safety of highway2 rail grade crossings in the United States. 

3 ‘‘(b) ACCIDENT AND INCIDENT REPORTS TO BE IN4 CLUDED IN DATABASE.—The database established under 

5 subsection (a) shall contain information from incident re6 ports filed with the Federal Railroad Administration re7 garding accidents and other safety-related incidents that 

8 have occurred at highway-rail grade crossings.’’. 

9 (b) CLERICAL AMENDMENT.—The chapter analysis 

10 for chapter 201 of title 49, United States Code, is amend11 ed by adding at the end the following: 

‘‘20168. Rail-highway grade crossing safety information.’’. 

12 SEC. 11. RURAL STATE INITIATIVE. 

13 (a) IN GENERAL.— 

14 (1) ALLOCATION.—The Secretary of Transpor15 tation shall address the problem of a significant por16 tion of traffic fatalities occurring on highways in 

17 rural areas by allocating, for fiscal year 2012 and 

18 each subsequent fiscal year, $20,000,000 to each 

19 State with a population density of less than 20 per20 sons per square mile (based on the most recent de21 cennial census). 

22 (2) USE OF FUNDS.—Amounts allocated pursu23 ant to paragraph (1) may be used by States for 

24 projects, programs, and activities that— 


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1 (A) are eligible for funding under section 

2 148(d) of title 23, United States Code; and 

3 (B) are not located in an urbanized area 

4 (as defined in section 134(b)(6), title 23, 

5 United States Code). 

6 (3) EQUITY BONUS PROGRAM.—Allocations 

7 under this subsection shall not be considered— 

8 (A) an ‘‘apportionment’’ within the mean9 ing of section 105 of title 23, United States 

10 Code; or 

11 (B) a ‘‘specific program’’ within the mean12 ing of subsection (a)(2) of such section. 

13 (b) FEDERAL SHARE.—The Federal share of the cost 

14 of a project carried out under this section shall be deter15 mined in accordance with section 120 of title 23, United 

16 States Code. 

17 (c) AUTHORIZATION OF APPROPRIATIONS.—There is 

18 authorized to be appropriated out of the Highway Trust 

19 Fund (other than the Mass Transit Account) such sums 

20 as may be necessary to carry out this section for each of 

21 the fiscal years 2012 through 2016. 

22 (d) APPLICABILITY OF TITLE 23.—Except as pro23 vided under subsection (a)(3), amounts made available to 

24 carry out this section shall be available for obligation in 


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1 the same manner as if such funds were apportioned under 

2 chapter 1 of title 23, United States Code. 

Æ 


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